When a couple has been married for less than two years at the time the foreign national becomes a lawful permanent resident, he/she is granted such status conditionally. This means that instead of receiving a permanent resident card valid for ten years your permanent resident card is only valid for two years. You are entitled to all the same rights and privileges as someone who has a ten-year permanent resident card. You simply need to file a Form I-751 prior to the expiration of your two-year permanent resident card. Failure to timely file your Form I-751 may result in your losing your permanent residence and your being placed in removal proceedings. You may also be placed in removal proceedings if USCIS denies your Form I-751.

You may “remove” the conditions on your lawful permanent residence if:

• You are still married to the same U.S. citizen or permanent resident after 2 years. Your children who also received lawful permanent residence through your marriage can be included on your petition if they received their conditional resident status at the same time or within 90 days of you. Otherwise, your child must file his/her own petition.
• You are a widow or widower who entered into your marriage in good faith that ended because of the death of your spouse.
• You entered into a marriage in good faith, but the marriage unfortunately ended through divorce or annulment.
• You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship at the hands of your U.S. citizen or lawful permanent resident spouse.

If you are placed in removal proceedings before the Immigration Court, you can request the Immigration Judge to review the Form I-751 denial. If you and your spouse filed a Form I-751 jointly, the U.S. Department of Homeland Security’s trial attorney has the burden of proving to the Immigration Judge by a preponderance of the evidence that your marriage was not entered in good faith. The trial attorney must file a copy of the administrative proceeding, which includes the Form I-751, Petition to Remove Conditions filed with USCIS, all supporting documents that you previously filed with USCIS, and a copy of USCIS’s decision denying your Form I-751. The USCIS officer who interviewed you and your spouse may also be called to testify before the Immigration Court. You may testify before the Immigration Court as well as call other witnesses and submit additional evidence to convince the Immigration Judge the conditions on your residence should be removed.

Adjudication of a jointly filed petition to remove conditions (i.e. Form I-751) is based strictly on the facts. There is no discretionary component. The Immigration Judge weighs the facts and information to determine whether the marriage was entered in good faith. If the Immigration Judge finds the marriage is bona fide, then he/she must remove the conditions on your residence. However, the Immigration Judge finds you did not enter your marriage in good faith, your conditional permanent resident status shall be terminated. On the other hand, adjudication of a Form I-751 seeking a waiver of the joint filing requirement is a discretionary determination. The Immigration Judge will determine what evidence is credible and decide what weight to give the evidence submitted by both you and the U.S. Department of Homeland Security.

If you previously jointly filed your Form I-751 with USCIS and you have since divorced, you will need to file a new Form I-751 with USCIS seeking a waiver of the joint filing requirement. This Form I-751 waiver request must be filed with USCIS even if you are currently in removal proceedings before the Immigration Court. This is because the Immigration Judge does not have the authority to adjudicate a petition to remove conditions. An Immigration Judge only has the authority to review a Form I-751 that has been denied by USCIS.

It is imperative that you file this new Form I-751 right away, because you will need to request that the Immigration Judge postpone hearings to allow USCIS to make an initial decision on your petition to remove conditions. If USCIS approves your petition to remove conditions seeking a waiver of the joint filing requirement, the Immigration Judge will terminate your removal proceedings. If USCIS denies your petition to remove conditions seeking a waiver of the joint filing requirement, the Immigration Judge will conduct an Individual Merits Hearing to reconsider the decision.